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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

MSBA opposes making cameras-in-courtroom pilot permanent

Acting on a recommendation from the Criminal Law Section, the MSBA filed comments with the Supreme Court in opposition to making the cameras in the courtroom pilot project permanent. The reasoning behind the MSBA position includes these factors:

  1. The small sample size of the pilot does not warrant a conclusion that it would be beneficial to allow cameras in the courtroom throughout the state. Soundbite video clips do little to advance transparency and the cause of justice.
  2. Permanent codification of the pilot would unfairly impact defendants and crime victims. Victims who are already fearful may decide not to provide statements at sentencings in case they are televised. Defendants whose sentences are later overturned or expunged may still have video recordings haunt them on the internet.

What follows is the full text of the MSBA’s comments:

March 26, 2018

RE: MSBA Comments Regarding Proposed Amendments to the General Rules of Practice for the District Courts, ADM09-8009 and ADM10-8049

Honorable Justices of the Supreme Court:

This letter is submitted in response to the Court’s request for comments regarding the recommendations to amend the General Rules of Practice as set forth by the Minnesota Supreme Court’s Advisory Committee (“Committee”) on the Rules of Criminal Procedure. In addition to the comments that follow, the MSBA requests ten minutes for Sonia Miller-Van Oort, MSBA President, and Max Keller, MSBA Criminal Law Section Chair, to present at the hearing scheduled for April 25, 2018.

I.  The MSBA’s Criminal Law Section opposed the cameras in the courtroom pilot project in 2014.

In 2014, the MSBA’s Criminal Law Section (“Section”) took a position opposing implementation of a pilot project for cameras in the courtroom. The Section is devoted to promoting fair and equal justice in Minnesota’s criminal laws and procedures, and is composed of city prosecutors, public defenders, county attorneys, and private defense attorneys. Its members work with judges, police officers, victim/witness advocates, probation personnel, court clerks, complainants, family members of the affected parties, and defendants on a daily basis. In 2014, the Section did not request full MSBA support for their position, but provided notice to the MSBA President that it intended to file comments as a Section. Upon receiving approval of the President, the Section provided written comments to the Court explaining its opposition and Section representatives spoke at the public hearing.

II. The MSBA opposes permanent codification of the pilot provisions permitting audio and video coverage in certain criminal proceedings.

In March 2018, the Section unanimously adopted a recommendation that the MSBA oppose the Committee’s recommended rule changes to make the pilot project permanent. The Section’s unanimous vote reflected the participation of its diverse membership and included prosecutors and criminal defense attorneys. All MSBA Sections were provided the opportunity to comment on the Criminal Law Section’s recommendation. The Family Law Section supported the recommendation of the Criminal Law Section. No other comments were received specifically supporting or opposing the recommendation.

The MSBA Council held two meetings to discuss the Section’s request and voted to support the Section’s recommendation that we submit comments to the Court from the MSBA as a whole.

A. Results of the Pilot Project Raise Concerns

The results of the 18-month pilot program period with a total of 53 sample cases (less than 0.1% of felony convictions and excluding misdemeanor convictions) do not alleviate the concerns raised in 2014 by the Section. Regarding the pilot program itself, the MSBA believes it is unreasonable to use a sample of this size as evidence that allowing cameras in the courtroom throughout the state of Minnesota is beneficial. Based on this tiny fraction of cases actually sampled, the Committee’s recommendation to proceed on the grounds that coverage thus far has not been inappropriate, is unwarranted.

The goals of the pilot project, to improve access to justice and increase transparency in the legal system, are laudable. Codification of the pilot provisions, however, will not have the desired impact. Criminal proceedings are already open to the public. The only information that will be provided to the public through cameras in the courtroom are soundbite video clips of the final moments of contested motion hearings, trials, and sentencing hearings. In addition, based on the pilot program samples, the media has focused on sensational cases that do not increase transparency or improve access to justice. Indeed, providing the public with a few soundbites of a yearlong case actually obfuscates and distorts the reality of the legal system, and decreases public understanding of how our criminal justice system works. One only needs to search YouTube for court hearings to understand how this will impact our legal system and the perception the community will receive.

B. Unfair Impact on Defendants and Crime Victims

Permanent codification of the pilot provisions related to audio and video coverage would unfairly impact defendants and crime victims. Crime victims are often terrified to come to court, face the offender, and speak at sentencing. It is akin to suffering the trauma of the crime all over again. It takes great courage to do so, especially when the offender’s supporters attend the hearing. Knowing that their statements may be televised can leave victims with no choice but to stay away from the sentencing hearing, or attend the hearing silently, depriving the court of information critical to making sentencing determinations. Similarly, defendants have information critical to a court’s sentencing determinations and whether a defendant chooses to speak and address the court is heavily influenced by cameras in the courtroom. In addition, a defendant is limited in his or her ability to object at a sentencing hearing, despite having opportunities to appeal a conviction. A visual record of the defendant being sentenced does not avail itself to simple correction or modification if the sentence is amended or subsequently overturned. When the recordings are released onto the internet, they will continue to follow the defendant whether they are rehabilitated, the conviction is overturned, the defendant is pardoned, or the case expunged.

We cannot identify any improvement to the cause of justice sufficient to offset the obvious prejudice inherent in making the cameras in the courtroom pilot project permanent. Cameras in the courtroom undermine the ability of a district court to obtain testimony from offenders and victims relevant to sentencing decisions. Cameras in the courtroom distort the judicial process and may very well undermine public trust and confidence in our judiciary.

We find the comments of Justice Antonin Scalia from April 2005, speaking about recordings in court, to be persuasive, at least as it relates to criminal proceedings impacted by the proposed amendments:

I wouldn’t mind having the proceedings of the court, not just audioed, but televised, if I thought it would only go out on a channel that everyone would watch gavel to gavel. But if you send it out on C-SPAN, what will happen is for every one person who sees it on C-SPAN gavel to gavel so they can really understand what the court is about, what the whole process is, 10,000 will see 15-second takeouts on the network news, which, I guarantee you, will be uncharacteristic of what the court does. So I have come to the conclusion that it will misinform the public rather than inform the public to have our proceedings televised (emphasis added).

C. The Legislature’s Concern

The Court is likely aware that the Minnesota Legislature is also very concerned about the substantive issue of cameras in the courtroom. This Court may also be aware that the MSBA testified at a legislative committee opposing the Legislature’s attempts to legislate this issue. We voiced strong opposition to any infringement on the judicial branch’s role and operations to administer justice. We emphasized that there is an appropriate rule-making process within the judicial branch and that that was the appropriate and best method for evaluating this issue.

Utilizing that method, the MSBA respectfully requests that the Court listen to the voice of the profession and its many practitioners who work in the criminal system who oppose use of cameras in the courtroom during sentencing proceedings.

 

For the reasons set forth in this letter, the MSBA opposes permanent codification of the pilot provisions permitting audio and video coverage in certain criminal proceedings. We appreciate the opportunity to provide these comments to the Court.

Sincerely,

Sonia Miller Van-Oort

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